Assault -- Criminal Defense
In New York State there are three levels of the crime of Assault. Assault in the first and second degree are felonies and assault in the third degree is a misdemeanor. Commonly the same defense for all levels of assault will be used during plea negotiations or a trial. The defense of Self defense or Justification must be explored by the criminal defense attorney.
In Westchester County the criminal defense lawyer has an opportunity to speak with the District Attorney and Judge to determine if the defense of self defense will be useful. In the criminal defense of matter in Orange county, Rockland, Dutchess, Putnam and in New York City courts the criminal defense attorney must also use all opportunity's to advance any self defense argument. The best criminal defense lawyers will obtain as many facts as possible to strengthen the argument of self defense.
Justification
In New York State the criminal defense of "Self Defense" is also known as Justification. The criminal defense attorney must raise the defense of Justification and the District Attorney is required to prove beyond a reasonable doubt that the accused was not justified.
New York Self Defense Law
In New York State the law of self defense requires that a person may use physical force upon another individual when, and to the extent that, he reasonably believes it to be necessary to defend himself (or someone else) from what he reasonably believes to be the use or imminent use of unlawful physical force by such individual.
The determination of whether a person reasonably believes physical force to be necessary to defend himself (or someone else) from what he reasonably believes to be the use or imminent use of physical force by another individual requires the application of a two part test.
First, the accused must have actually believed that the individual was using or about to use physical force against him (someone else) and that the defendant's own use of physical force was necessary to defend himself (or someone else) from it and
Second, a "reasonable person" in the defendant's position, knowing what the defendant knew and being in the same circumstances, would have those same beliefs. It does not matter that the accused was or may have been mistaken in his/her belief, provided that such belief was both honest and reasonable.
Self Defense is not Justified When:
1. The accused was the initial aggressor
2. The individuals conduct was provoked by the accused with intent to cause physical injury
3. The accused is not justified if the physical force was the product of a combat by agreement
4. A person is not authorized to use physical force to resist an arrest.
Self Defense
In many circumstances an accused had to defend themselves against aggression from another person. Sometimes the police do not do an adequate job determining (or sometimes can not determine) who was the initial aggressor and responsible for the assault. The police will simply arrest the person who has the least amount of injuries or the person who didn't make it to the police department first to report the assault.
The best criminal defense for an assault case is to carefully set forth a good self defense argument and challenge the elements of the assault as well as the injury.
If you or a loved one is charged with assault they should speak with a criminal defense attorney immediately. Review of the evidence is the most important aspect of the case.
For example, in the Village of Pleasantville, New York criminal defense attorney Andrew Proto had an assault charge dismissed after it was determined that the accused was not the initial aggressor. Fortunate for the accused surveillance material cleared the accused form the assault after reviewed by Andrew Proto.
